Milije (Migration)

[2022] AATA 761

Milije (Migration) [2022] AATA 761 (25 March 2022)

Corrigendum

DIVISION:  Migration & Refugee Division

APPLICANT:   Mrs Douae Milije

CASE NUMBER:  2120173

HOME AFFAIRS REFERENCE(S):          BCC2017/918300

MEMBER:  Peter Vlahos

DATE OF DECISION:  25 March 2022

DATE CORRIGENDUM

SIGNED:12 April 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the   decision:

• At paragraph 11, the reference to ‘cl.461.223’ should be deleted and replaced with ‘cl.100.222’.
• At paragraph 14, the reference to ‘cl.461.223’ should be deleted and replaced with ‘cl.100.222’.

Peter Vlahos
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Douae Milije

CASE NUMBER:  2120173

HOME AFFAIRS REFERENCE(S):          BCC2017/918300

MEMBER:Peter Vlahos

DATE:25 March 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

·Regulation 2.03AA(2)

This Statement was made on 25^th March 2022 at 3.11PM.

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – criminal history statement – AFP national police certificate provided to tribunal – no discloseable court outcomes – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 2.03AA(1), (2)(a), Schedule 2, cl 100.222, Schedule 4, criterion 4001

Statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 23 September 2016. The criteria for a Partner (Migrant) (Class BC) visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Additional criteria are prescribed in Division 2.1 of Part 2 of the Regulations.

3. Regulation 2.03AA of the Regulations applies where a person is required to satisfy Public Interest Criterion (PIC) 4001 or 4002: reg 2.03AA(1). In this case, r. 2.03AA(2)(a) of Schedule 2 of the Regulations requires the applicant to meet PIC 4001. The applicant is therefore required to satisfy the criterion in reg 2.03AA(2).

4. Regulation 2.03AA(2)(a) requires that, if requested, the applicant has provided a statement from a relevant authority in a country where the person resides or has resided that provides evidence about whether or not the person has a criminal history. Regulation 2.03AA(2)(b) requires that, if requested, the applicant has provided a completed approved Form 80. The Tribunal may waive the requirement in reg 2.03AA(2)(a) if it is not reasonable for the applicant to provide the statement: reg 2.03AA(3). The Tribunal cannot waive the requirement for the applicant to provide a completed Form 80.

5. The delegate refused to grant the visa on 10 December 2021 on the basis that the applicant did not meet reg 2.03AA because the applicant had not provided an AFP National Police Certificate when requested

6. The applicant seeks review of this decision.

7. No hearing was held in this case because the Tribunal determined it was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted to the Department for reconsideration.

   consideration of claims and evidence

   Relevant law

8. One of the criteria for the grant of a Subclass 100 visa is cl.100.222 which requires that the applicant meets Public Interest Criteria including PIC 4001. Where a person is required to satisfy PIC 4001 for the grant of a visa, there are additional criteria prescribed under r.2.03AA that must be met for the grant of visa. This criterion requires an applicant to provide requested documentation or information relating to the applicant’s character and criminal history. 

9. Regulation 2.03AA(1) states that, in addition to the criteria prescribed by Regulations 2.03 and 2.03A, if a person is required to satisfy PIC 4001 or PIC 4002 for the grant of a visa, the criterion in sub regulation (2) is prescribed.

10. Regulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

    (a)  a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history;

    (b)  a completed approved form 80.

    Does the applicant meet Regulation 2.03AA?

11. Although the delegate found that the applicant did not satisfy cl.461.223, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001.

12. The applicant submitted a certified copy of a National Police Certificate to the Tribunal from Australian Federal Police dated 8 February 2022 which shows no disclosable court outcomes.

13. The Tribunal is satisfied that the Minister requested a statement provided by an appropriate authority in a country where a person resides, or has resided, which provides evidence about whether or not the person has a criminal history. The Tribunal is satisfied that the applicant has now provided to the Tribunal copies of the AFP certificates. A completed form 80 appears on the Departmental file. The Tribunal is satisfied that the applicant meets r.2.03AA(2) and therefore meets r.2.03AA.

14. Although the delegate found that the applicant did not satisfy cl.100.222, this finding appears to have been made on the basis that as the applicant failed to provide the police certificate and did not meet r.2.03AA, which was necessary for an assessment of PIC 4001. As the applicant has provided the police certificate, the delegate is now able to assess whether the applicant meets PIC 4001 for the purposes of cl.461.223.

15. The Tribunal considers the appropriate course of action is to remit the application to the Minister to undertake consideration of whether the applicant meets PIC 4001 for the purposes of cl.100.222 and the remaining criteria for the grant of a Subclass 100 visa.

    decision

16. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 visa:

    ·Regulation 2.03AA(2).

    Peter Vlahos
    Member